Family Law Property Issues in Australia

(Victorian & Australian Law)

In recent times, the jurisdiction of property disputes in Family Law has broadened. Traditionally, property was only divisible between married or divorced couples. De-facto and same sex partners are now able to apply for a property settlement, though under different law. In the absence of agreement between the parties, an application for the settlement of a property dispute is made to the court, to be decided on the basis of need.

The settlement reached becomes legally binding and enforceable by the courts. Here’s a rough guide to what usually happens in these situations…

Applications

Parties can make a property settlement by agreement or, if agreement cannot be reached, make an application to the court for a property settlement. Applications for the division of property after divorce can be made to the Family Court or to the Federal Magistrates Court where a property dispute is worth less than $700,000.

Only parties who are or were married can make an application for a property settlement under the Family Law Act 1975 (Cth). In the case of divorce, an application must be made within 12 months of receiving the decree absolute. De-facto and same sex partners can make an application under the Property Law Act 1958 (Vic) in the Supreme Court, County Court or Magistrates’ Court.

Once an application is made, the parties will be asked to attend a case conference, with the aim of settling the property dispute by agreement before it goes to court. Present at this conference will be the parties, any family lawyer involved and a court registrar. If this conference is unsuccessful, the parties will go to court.

Property disputes in de-facto and same sex relationships (domestic relationships) are dealt with under the Property Law Act 1958 (Vic). A domestic relationship is a relationship between two people (regardless of gender) who live together as a couple on a domestic basis but are not married. The domestic relationship must have existed for at least two years for an application for a property dispute to be made under Part 9 of the Property Law Act . If there are exceptional circumstances, for example children being born out of the relationship, this two-year period can be waived. The relationship must have ended after 8 November 2001 for Part 9 to apply.

Property

The type of property divisible in a property settlement includes assets, cash, real estate, investments, insurance policies and superannuation. Debts are also taken into account. In a domestic relationship, as governed by the Property Law Act , superannuation and retirement benefits are not included in a property settlement. In making an order for property settlement, the court calculates the total pool of assets of the parties.

The division of these assets is based on both contributions made by each of the parties to the asset pool and future needs. The contributions of the parties include non-financial contributions, which means a homemaker will not be disadvantaged in this assessment. Future needs takes into account who is responsible for the daily care of the children, earning capacity, age, health and the financial circumstances of any new relationship. The aim is to distribute the property fairly between the two parties.

If you believe your partner is going to dispose of assets before the total pool of assets is calculated you can obtain an injunction to stop the sale taking place. Bank accounts and proceeds from the sale of any assets that has already taken place can also be frozen.

Spousal Maintenance

A party can apply for ongoing spousal maintenance if they can prove they are unable to support themselves. This application must be made within 12 months of divorce. An application for spousal maintenance is often included with an application for property settlement so that all financial issues are dealt with at once.

Spousal maintenance cannot be applied for where a domestic relationship exists.

Enforcement

If an agreement is reached between the parties, they can apply to the court for consent orders. This will make the agreement enforceable by the courts in case of dispute. Consent orders, once made, are final. A party must prove fraud, impracticality or other exceptional circumstances if they wish the consent orders to be set aside or varied.

If a party is not complying with the orders made, an application can be made to the court for enforcement. In this application, the party applying must set out exactly what the problem is. The court will then decide whether an order is needed to enforce the existing order.

A family law property settlement is an important process to go through after the breakdown of a marriage or domestic relationship. A property dispute can be settled by agreement between the parties or resolved by the court. Each case is unique and will be considered by the court according to its own circumstances. The court will not consider who is at fault in the breakdown of a relationship. Rather, it will be resolved on the basis of fairness and need.

Understanding What Happens to Your Money in Divorce Proceedings

Rupert Murdoch has recently filed for divorce from Wendi Deng, his third wife. Even though it is unknown what caused the marriage of 14 years to end, people have speculated for months about the relationship of the couple. Deng, who is Chinese-born and Yale-educated, is accomplished on her own before ever marrying Murdoch, but that didn’t stop people from dubbing her as a gold digger.

Since the 82-year-old Murdoch runs a powerful conglomerate in terms of media, many people wonder what is going to come of his fortune. When you consider he has 20th Century Fox, Sky News Service, Fox Television, the Wall Street Journal, Harper Collins Publishing and many others, you can easily see just how much he is worth financially. Even though Deng stayed out of the public eye for much of their marriage, everyone wonders what the legal precedent is now that the divorce is underway.Shortly after they wed, Murdoch announced that Deng was going to step down from her role at News Corp. in Hong Kong. She never fully left the media world. She would attend meetings with Murdoch and his son to make sure everything went smoothly. During their marriage, she had two girls with Murdoch. He has four other children from his other two marriages.

According to her Yale profile, she is the co-founder of Big Feet Productions, which is an independent studio based in East London making games and applications for Apple. The divorce would effectively end Deng and Murdoch’s union and set a battle into motion for how much of the fortune she and the children are going to receive. His recent fortune was estimated at more than $11 billion. The showdown comes at a bad time for News Corp. They recently approved plans to split operations between two publicly traded companies.

Since Murdoch is the largest shareholder in the company, he will be the chairman of the two new enterprises. It is not yet known whether there was a prenuptial agreement signed between Deng and Murdoch before they were married. Even if there is, no one knows where it was filed at. Most people assume there was documentation filed to protect Murdoch’s fortune, especially when there was so much to lose.

Depending upon where the paperwork was filed, individual states will choose whether the terms are unfair or unconscionable and proceed with upholding the prenuptial agreement or making their own amendments to the document. Other countries may have their own set of rules and restrictions, but in the United States, things would be handled in the aforementioned manner.

A prenuptial agreement can do a lot for protecting the best interest of the parties involved, but the court and legal system will determine whether they are going to overturn the agreement or uphold it. In the end, lawyers and the legal system are the ones going to make the arguments and final decisions on what is going to happen. A trained lawyer will be able to fight in the best interest of the parties involved.

Are Pre-Nuptial Agreements Ironclad?

(US family law and generally) Every year nearly 2.3 million Americans get married, with nearly half of them culminating in divorce. This statistics concerning national divorce rates reveal that the likelihood of a breakup in marriages exceeds an incredible 50 percent. So it is not at all surprising that the extensive use of prenuptial agreements is ever on the rise.

Nature of a Prenuptial Agreement

Any prenuptial agreement is drawn up either before or while contemplating marriage. Such an agreement essentially divulges the assets as well as debts of both parties, and spells out just what happens to these either upon the death of a partner or if the divorce of the parties. When people are engaged to be married, their relationship becomes fiduciary in nature, and as such both partners have a duty to reveal assets and income. If they fail in this, the prenuptial agreement becomes null and void.

A Peep into History

Although it is a fairly common practice these days, courts previously subscribed to the idea that it negates public policy to afford a monetary settlement if a marriage ends up in either a separation or divorce. The principal reason for this factor was that an agreement to this effect would be undermining the conjugal relationship in advance and as such can encourage marital breakups.

Full Financial Disclosure

Total fiscal disclosure is indispensable. It must be kept in mind that requesting a prenuptial agreement can be interpreted by your future spouse as you having no trust in them. If you are being deceitful about your finances, you are only giving them plenty of ammunition to attack you. The basis of a legitimate premarital agreement is the need for disclosure. Without ample disclosure it is not easy to draft a binding contract, particularly if material facts are concealed. Thus, the way to guarantee the legality of the prenuptial agreement is to exchange prevailing net worth statements, which requires detailing assets as well as liabilities. Prenuptial agreements are in effect a sincere effort to decide issues such as distribution of wealth, division of property, support, etc. in the event of the demise of either of the spouses or the breakdown of the marriage that ends in separation or divorce.

Statute of Frauds

The Statute of Frauds requires that an agreement entered into in consideration of either marriage or a pledge to marry must be in writing and duly signed by both spouses.

Consideration

Consideration is an indispensable factor of an agreement. In case sufficient consideration is lacking, an agreement becomes invalid. In the marital sphere, the reciprocal promises to enter into wedlock serve as sufficient consideration.

Fairness

Any premarital agreement deemed unfair cannot be enforced if it is considered “unconscionable.” Courts tend to investigate an agreement that favors one spouse or the other in a lopsided manner on its own merits or demerits. Additionally, persons and conditions change, so that a contract that might seem fair at first becomes less so with the passage of time. Unconscionability is put to the test based on when the prenuptial agreement is enforced, not when it was signed, since enforcing an out-of-date agreement blindly can end in unforeseen financial hardship for the affected spouse.

Independent Counsel

To have common counsel in the drafting and reviewing of the proposed prenuptial agreement can be problematic. To safeguard the interests of either party, both parties should have separate counsel.

Duress

The last major point concerning the execution of the agreement is that it should be accomplished without duress. Sometimes the agreement is entered into on the eve of marriage, or even on the day of the wedding itself. Actually, a reasonable amount of time should pass after the signing of the agreement and the important day.

Trigger Clause

A good divorce lawyer will advise you to add a “triggering event” to the agreement that would kick start divorce proceedings automatically, while distinguishing between separate and marital property as of that date. This can come in handy, mainly if your prenuptial agreement is based on offering your partner a portion of your estate at a time when you are looking forward to some future earnings, inheritance, etc.

As the circumstances of every individual are unique, prenuptial agreements as a rule do not undergo standardization. Instead, they are specially drawn up to suit the specific requirements of both parties. Besides, such agreements do not necessarily remain ironclad unless they are properly structured.

About the author

Jonathan Ryerson is a freelance legal writer who focuses on Domestic Violence, Criminal Defense, Family Law, Mediation, DUI Defense and other topics.

The Advantages –and Disadvantages– of Prenuptial Agreements

Getting married is one of the most exciting periods in life. The joy of spending life with your partner is constant, but while you may be euphoric, it’s important to come back to reality and consider the financial impact of your partnership. While prenuptial agreements can be a strong safeguard for your pre-marriage finances, they can cause painful emotions and feelings of resentments. Here are some of the pros and cons of prenuptial agreements.

What is a Prenuptial Agreement?
A prenuptial agreement is simply a legal contract that separates your pre-marriage finances from the ones you possess in a partnership. In the event of a separation or divorce, the prenuptial agreement protects your ownership over those finances. If you don’t have the protection of a prenuptial agreement, your pre-marriage financial assets are at risk of being split if a divorce does occur.

Financial Protection
This is the first big one. Being able to have in writing what you’d like to do with your money in the event of a divorce or death is serious protection. If you have children from a previous marriage or have experienced a costly divorce in the past, signing a prenuptial agreement can ensure that if things don’t go as planned, you’ll still be able to stay financially afloat. While it’s unpleasant to think that your wonderful partnership could end in divorce, keeping that in mind while signing a prenuptial agreement will help you realize it’s for your financial protection.

Trust Issues
This is the biggest downside: while there are no statistics on how many prenuptial agreements are signed per year, the divorce rate in the United States continues to hover around 45%. While no one can be sure if this is due to prenuptial agreements, asking your partner to sign such a document can make them feel alienated, suspicious, or betrayed. Be sure to carefully outline your concerns before broaching this subject with your loved one.

Security
Often times one of the main boons of marriage is the guaranteed financial security for the less affluent spouse, or even for the spouse who is unemployed or underemployed. If one partner enters the union without a large amount of assets, and chooses not to work during the marriage, in the event of a divorce that partner will still have access to his/her spouse’ s premarital finances. Upon signing a prenuptial agreement, if one partner enters the marriage wealthier than the other, it will stay that way if a separation is to occur. This agreement then helps to ensure that both parties are marrying for purposes other than financial security.

Emotional Issues
While it’s nice to believe that these issues can be looked at logically and rationally, setting aside emotions during this process can be a difficult task. While there are many partners out there who support the financial independence of their spouse, many might take this suggestion as an assumption that one party is only in it for the money. This can take an emotional toll on both partners from which it’s difficult to heal.

Choose Wisely
When it comes to prenuptial agreements, each scenario will be best suited by a different act. If you’ re unsure about what to do, talk over the issue with friends, family, and most importantly your spouse, in order to understand your needs and prepare for the future.

This article was contributed by Sandy Wallace, an aspiring lawyer who loves to share his far-reaching knowledge of law with anyone who will listen. Sandy writes on behalf a Denton divorce lawyer from Hammerlie Finley Law Firm –Texas’s passionate, personable divorce and family lawyers.

The Marriage (Same Sex Couples) Bill: legal update

Background

Civil partnerships were introduced in the UK in 2005, but legislation such as the Matrimonial Causes Act 1973 has historically prevented the marriage of same sex couples.  In a bid to step closer to equality, the Coalition Government introduced the Marriage (Same Sex Couples) Bill (“the Bill”) which will legalise the civil and religious marriage of same sex couples.  If the Bill receives Royal Assent it will undoubtedly mark an important milestone in the battle for equality.  A number of YouGov surveys published between 2012 and 2013 reveal that although the precise figures vary, the majority of participants have confirmed their support of the legalisation of same sex marriage.

On overview of the area

While the majority of the British public appear to be in favour of same sex marriage, presumably many of us anticipated that making it legal would simply require the Government to extend the current legislation to include the gay community.  However, some unanticipated difficulties have arisen during the drafting of the required new legislation.

One of the main causes of confusion that has arisen is that under the present drafting adultery will only be a ground for divorce if the adultery has taken place between the cheating spouse and a member of the opposite sex.  In other words, if two men are married and one of them is unfaithful with another man, his husband will not be able to petition him for divorce on grounds his adultery.  Instead, he will have to rely on grounds of unreasonable behaviour.  If, however, his husband were to be unfaithful with a woman, the aggrieved husband could petition for divorce on grounds of adultery.

There has been concern that some couples will choose to wed to benefit from tax and other reasons disassociated from traditional factors such as love and children.  Others argue that those who take this view are simply opponents of same sex marriage seeking to opportunistically discredit the viability of the Bill.

The Marriage (Same Sex Couples) Bill was not featured in the Queen’s Speech this year, but it continues to progress speedily through the House of Commons and is expected to reach the House of Lords in June.  The Bill may be subject to amendment on its way to Royal Assent and once it becomes law certain aspects may be made subject to judicial interpretation (for example, notions of consummation and adultery seem particularly vulnerable to litigation given the unanticipated difficulties).  Despite the technical difficulties faced by the legislators so far, the majority of the British public supports the right of same sex couples to marry and we are well on the way to making it legal, despite some bumps in the road.

For more information on same sex marriage of any area of family and matrimonial law contact Lisa Kemp

Pre-marital and Post-marital agreements

(US family law and general advice) This article is brought to you by San Diego Family Law Attorney Tara Yelman of Yelman & Associates.

Pre-marital agreements (pre nuptials) used to have a very negative connotation, but have become more widely-used and socially acceptable in recent years. Due to rate of occurrence, range of wealth and the heightened level of equality between men and women, most courts no longer frown upon prenuptial agreements or assume that either party has a wandering eye or wavering values.

A prenuptial agreement, or “prenup,” is a written contract created by a couple before they are married. A prenup usually lists all of the property each person owns and all of each person’s debts prior to tying the knot, and specifies what each person’s property rights will be in the event that the marriage ends. Reasons that couples get prenups vary, but listed below are some of the most common:

  • To provide clarity about financial rights and responsibilities during the marriage
  • To provide protection from each other’s debts
  • Especially in circumstances when one or both parties has children from a previous marriage, a prenup can provide protection and structure regarding what is given to the kids in case of death.
  • For precautionary reasons: without a prenup a couple will be subject to divorce laws in their state.

If a couple decides to enter into a marriage without a prenup but later notices that they should have done so, they can create a postnuptial agreement. A postnuptial agreement is a contract that is signed after the couple has already been married. Although they are becoming more commonly used, “postnups” are not yet valid in every state and are more likely to be scrutinized by courts because they can be viewed as “divorce-planning tools.” Below is a list of some reasons married couples choose to get postnups:

  • The couple wants to amend their prenup
  • New business ventures: For example, it is common that in the case that one party enters into business with a new partner, the partner will request that the party get a postnup in order to ensure that the party’s spouse does not receive any of the business after the marriage.
  • Separate property is used to purchase community property
  • One party receives a significant inheritance

Most couples are able to create the contents of their prenups and postnups on their own, however it is crucial for each party to hire a separate lawyer to review the contracts and advise each individual client. Entrusting a lawyer is also important to ensure that the document is legally sound, and to avoid the possibility of a court questioning its’ validity.

Is A Prenuptial Agreement After Marriage Possible?

Technically, a prenuptial agreement, also known as a premarital, antenuptial, prenup and/or prenupt, is a contract for couples intending on legally consummating their relationship. If the couple is already married, the agreement is called a postnuptial. Chances are the latter is more complex due to the circumstances involved with designating the collective assets of married couples, versus the individual assets of most engaged couples.

The word prenuptial is taboo in many relationships, but prenuptial and postnuptial agreements actually offer several advantages. They allow a couple to mutually divide and allocate all property and/or assets owned prior to marriage. Although this may be a sensitive topic to some, ultimately, the purpose of a prenuptial or postnuptial is to reduce stress, as well as legal costs, in a worse case scenario.

If you honestly think it will be difficult to talk about a prenuptial agreement with your mate, you might want to read on.

Is a Postnuptial Agreement Right for Me?

There are various answers for why people decide to get prenuptials or postnuptials. Of course the hope is that your prenuptial agreement will never be executed. But in the remote possibility that you ever appear in a court of law, the chances of the judge throwing the book at you will probably be minimized!

In certain U.S. states judges do not have to honor any of the nuptials presented in their courts. Some judges have the authority to only honor the fact you are legally married. Fortunately, many judges will generally respect the mutually agreed upon prenuptial of litigants.

A Sensitive Subject

The notion of a prenuptial might be inconvenient, but in the end, it truly could be beneficial for you and your spouse. A prenuptial and/or postnuptial agreement is probably the safest way for a couple to secure their assets, as well as your rights.

Discussing a prenuptial agreement with your mate could easily turn into a rather sticky situation, especially if you do not approach the topic correctly. Despite this, the agreement can be extremely beneficial for all parties, because it virtually excludes couples from having certain disputes.

Unfortunately, the longer you wait to learn about nuptials, the harder it might be to plan it later. The only thing left to do is consult a family law attorney to ease your anxiety, especially if this is a sensitive topic in your relationship.

Top 10 Biggest Celebrity Prenuptials

Below is a guest divorce law blog post regarding some of the biggest celebrity prenuptials.

Going through a break-up is never an easy or pleasant experience. How much worse, then, for those with a mighty fortune and property that will be divided and the pressures of fame to deal with? Although it may not seem a very romantic way to start married life, more and more celebrities are opting for a pre-nuptial agreement to try and make any future break-up easier to administer while preserving as much of their personal wealth as possible.

Why Celebrities Make a Pre-Nuptial Agreement

Although it can seem a depressing thing to do, having a ‘pre-nup’ can be about more than simple greed and wanting to hang on to cash. For some, a pre-nuptial agreement can actually relieve tension that might otherwise exist in a relationship to do with money and property. When the marriage is not the first and children are involved, these agreements can protect the interests of the existing families and make life easier for divorce lawyers if things ever come to that.

Agreements can be extremely flexible. When celebrities find themselves having to go through the divorce process, their lawyers will go through any pre-nuptial agreements with a fine-tooth comb. Sometimes these can have unusual clauses that have been carefully tailored to their clients.

Stay With Me

When Nicole Kidman married Keith Urban, their agreement involved her paying him $640,000 per year while they remained married, but removed his rights to receive anything if he ever used illegal drugs again.

Paying for fidelity or marital longevity seems to have become a mainstay of agreements by trying to actively discourage divorce by making it more financially beneficial to remain married. Take music stars Beyoncé and Jay-Z’s arrangement, which sees her set to receive $10,000,000 in the first two years of marriage and $1,000,000 for a further 15 years.

If Katie Holmes were to remain married to Tom Cruise for more than 11 years, she will be entitled to half his fortune. But the $3,000,000 she receives for every year she remains married to him until then is not a bad income to be going on with.

The Big Pay-Off

Pre-nuptial agreements are better known for defining what someone will receive when they leave. Hell hath no fury like a woman scorned and Michael Douglas would do well to remember it. If he is ever unfaithful to Catherine Zeta-Jones, she would receive a ‘bonus’ payment of $5,000,000 on top of the $2,800,000 for every year of married life.

Charlie Sheen and Denise Richards had a similar idea, agreeing that if either strayed they would pay the other $4,000,000. Russell Crowe would have to stump up an eye-watering minimum $15,000,000 if his marriage to Danielle Spencer ends in divorce. Khole Kardashian is very specific in her requirements, which include a $5,000 per month shopping allowance, courtside season tickets to Lakers games for all her family and a $25,000 monthly amount for support from Lamar Odom in the event of divorce.

So Long, Farewell

Some celebrities use their agreements to avoid large pay-outs. Britney Spears ended up paying her ex-husband Kevin Federline less than £1,000,000 thanks to hers and Kim Kardashian’s assets, including her earnings during marriage, are also protected. Director Steven Spielberg’s agreement was considered invalid as it was written on a napkin and rather than paying nothing, he ended up shelling out £50,000,000 to Amy Irving.

Our guest blogger today is Robert, a blogger and freelance writer with an extensive amount of knowledge on family law. Robert is currently writing for Switalskis Family Law.

What To Look For When Seeking a Family Lawyer

What To Look For When Seeking a Family Lawyer

If you’ve never been through the legal process before, realizing the amount of time, effort, and stress that go into it can be more than daunting.  Hiring a lawyer alone is intimidating; how can you determine a good lawyer from a bad one if you’ve never had to hire one before?  Below you’ll find the qualities you should look for when seeking the right lawyer for your family law case.

Background Information on the Practice of Law
There’s a misconception that a lawyer is a lawyer, in the sense that they all have the same knowledge and practice law.  However, this is simply not the case.  There are three types of lawyers you’ll come across on your lawyer search.  Specialized lawyers are those whose practice is specialized in a specific type of law, such as personal injury law.   General lawyers, i.e. lawyers that practice a broader area of law, might practice personal injury law and business law simultaneously.  Then there are Referral lawyers.  These lawyers may be either specialized or general lawyers, but they advertise as if they practice various types of law.  When clients come to them in a specialty outside of their practice area, which is typical due to referral lawyers affinity to advertise a broad range of specialties, referral lawyers then refer the client to another attorney.  The reason they do this is because referral lawyers get a percentage of the lawyer fees for all cases they refer out.  For instance, Lawyer A refers a client to Lawyer B.  When Lawyer B wins the case, Lawyer B must forfeit a percentage of his/her fees from the case.  So, put bluntly, referral lawyers get paid for doing absolutely nothing in a case they’ve referred to another lawyer.

Qualities You Want in a Family Lawyer
You should look for three factors when determining if a lawyer is right for your divorce, separation, will, children’s rights or divorce settlement legal needs.

First, you should look for a lawyer who has experience handling family law cases.  You will want to avoid “referral lawyers” as the fees they take can deter the lawyers they refer your case to from actually taking it; lawyers, like any professional, are in it for the money and if they have to forfeit percentage of their winnings on a case that already isn’t worth that much, they aren’t going to take it.  You should seek out lawyers who have a long history of experience with family law cases and who have been successful with such cases.  While a general attorney might have a lot of experience with family law cases, you should generally look for a lawyer who specializes in family law as he/she is the more likely to be adept to the legal procedures of such a case.

And do not rely on lawyer rating sites, like Super Lawyers, AVVO, and Best Lawyers to give you reliable information on a lawyer’s success rate and the like.  These sites’ “rankings” are determined by how much a lawyer is willing to pay and the information on the lawyers is not generally verified by the lawyers themselves.  For example, attorney John Smith might be stated as a family lawyer on a lawyer ranking site when in fact he is a slip and fall lawyer.  You don’t want a personal injury lawyer handling your family law case, do you?  It would be like having an accountant acting as your stock market investment advisor; it’s simply the wrong specialist handling the wrong specialty.

Second, you need a lawyer who is capable of giving your case the time and attention it deserves.  And third, you need a lawyer with knowledge about your case type.  General lawyers handle many different types of cases, which means they must have a vast working knowledge of different laws and law procedures.  For instance, a general lawyer handling a business law case, a personal injury case, and a criminal case will need to know the necessary laws for each of those law specialties as well as the procedures required by each.  That’s a lot of work and knowledge that a single person must endure and retain.  A general lawyer may be less knowledgeable about your case type and less able to spend time on your case because he/she is handling so many different types of cases.

Amber Paley is a guest post and article writer bringing to us what qualities one should look for when seeking a family lawyer.  Outraged by the prevalence of elder neglect in the U.S., Amber spends much of her professional life writing education articles to help those affected another’s negligible care find good nursing home abuse attorneys.

The Divorce Process: Family Law Information

The Divorce Process

Divorce is the legal process through which two people end their marriage and the legal status that it provides. It is usually an extremely emotional time for the parties involved and also for their children, if they have any. The best way to make your divorce process as smooth as possible is to find a solicitor who you can trust and work comfortably with.

It is important that both parties understand their legal position on divorce and know exactly to what they are entitled. A divorce solicitor can make sure finances and property are properly distributed and arrangements are made for children, leaving no room for disagreements.

Petitioning for divorce

In order to begin the process of divorce one party to the marriage must present a petition for divorce on the grounds that the marriage has broken down irretrievably. It is important to note that the parties must have been married for at least a year before they are able to make such a petition.

Whether the marriage is broken down irretrievably is not simply a matter of opinion, and there is legislation stating that at least one of five factors must be present before any court will make a ruling that the marriage has in fact broken down irretrievably. These five grounds for divorce are as follows: unreasonable behaviour, adultery, living apart for two years and both parties consent to the divorce, living apart for five years, and desertion.

Acknowledgment of service

A copy of the petition must be sent to the other party along with a statement of arrangements for the children (if applicable) and an acknowledgment of service. The respondent must inform the petitioner in the acknowledgment of service whether they will be contesting the divorce. The acknowledgment of service is therefore an extremely important document as it shows the court that the other party is aware of the petition. If the other party refuses to return the acknowledgment of service you may have to arrange for a process server or bailiff to serve the document and make an affidavit stating that they have done so.

Decree nisi

If the court is satisfied that there are valid grounds for divorce it may well grant what is known as a decree nisi. A decree nisi will generally be granted when a divorce is not being contested and there are valid grounds for divorce. The party who made the petition must then apply to have the decree made absolute which they cannot do until at least six weeks and one day from the date of the decree nisi.

Decree absolute

The decree absolute is what actually ends the marriage, as opposed to the decree nisi which merely declares there are satisfactory grounds. Once the decree absolute has been pronounced the marriage has officially ended and usually the parties will begin ancillary relief proceedings: the name given for deciding how the matrimonial assets should be split.

Ancillary relief proceedings

The ancillary relief proceedings are often fiercely contested as a judge will rule on who should have what from the matrimonial assets. The ancillary relief process can be quite long and usually involves three trips to court.

  • A first appointment in which a judge outlines his position and ensures appropriate disclosure has taken place.
  • A financial dispute resolution hearing in which a judge (a different judge from who will be in attendance at the final hearing) will give an indication of what he would order in the hope the parties then settle on similar terms and avoid a final hearing.
  • A final hearing in which an order will be made.

With the potential for several court visits, it is in both parties’ interests to try to facilitate an early settlement to avoid significant legal costs.